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HomeMy WebLinkAbout07-4550WILLIAM H. GOODLING and IN THE COURT OF COMMON PLEAS OF KELLY J. GOODLING, Husband and CUMBERLAND COUNTY, PENNSYLVANIA Wife, Appellants . 07 - ~lS"s'D ~c~~C~~-~ v. BOARD OF COMMISSIONERS OF . EAST PENNSBORO TOWNSHIP TOWNSHIP LAND USE APPEAL Appellee, NOTICE OF APPEAL OF WILLIAM H. GOODLING AND KELLY J. GOODLING FROM THE JULY 5, 2007 DECISION OF THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP DENYING APPELLANTS FINAL SUBDIVISION AND LAND DEVELOPMENT PLAN William H. Goodling and Kelly J. Goodling (hereinafter referred to as "Appellants"), by and through counsel of Andrew C. Sheely, Esquire and David H. Stone, Esquire, hereby file this Appeal pursuant to the Pennsylvania Municipalities Planning Code from the decision of the Board of Commissioners of East Pennsboro Township at its meeting on July 5, 2007 wherein the Board of Commissioners failed to approve Appellants land development and subdivision plan. In support of this land use Appeal, Appellants respectfully state as follows: 1. William H. Goodling and Kelly J. Goodling (hereinafter "Appellants") are adult individuals who reside at 395 Alison Avenue in Mechanicsburg, Cumberland County, Pennsylvania. 2. Appellee, the Board of Commissioners of East Pennsboro Township, is a township of the first class and a governmental agency with principal offices located at 98 South Enola Drive, Enola, Cumberland County, Pennsylvania. 3. Appellants own and seek to lawfully improve certain real estate in East Pennsboro Township, Cumberland County, Pennsylvania. 4. Appellants submitted a preliminary land development and subdivision plan known as "Grants Cove" to East Pennsboro Township for the purpose of developing Appellants' real estate located in East Pennsboro Township, Enola, Cumberland County, Pennsylvania. 5. On or about March 21, 2007, Appellants' preliminary subdivision and land development plan was conditionally approved by the Board of Commissioners of East Pennsboro Township. 6. Thereafter, on or about June 7, 2007, the East Pennsboro Township Planning Commission recommended approval of Appellants' final subdivision and land development plan known as "Grants Cove". 7. Appellant's final land development and subdivision plan was considered at a public meeting before the East Pennsboro Township Board of Commissioners on July 5, 2007. 8. During the July 5, 2007 meeting before the Board of Commissioners of East Pennsboro Township, Appellants were advised by certain officials in East Pennsboro Township that all requirements of the East Pennsboro Township Subdivision and Land Development Plan had been met by Appellants. 9. During the July 5, 2007 public meeting, the Board of Supervisors improperly convened an executive session to discuss matters of potential litigation concerning Appellant's final subdivision and land development plan known as "Grants Cove". 10. Upon reconvening its meeting on July 5, 2007, the Board of 2 Commissioners of East Pennsboro Township advised Appellants that final subdivision and land development plan would not be approved until Appellants initiated an action in the Court of Common Pleas of Cumberland County and obtained a Court Order opening an abandoned paper alley known as Morris Street on lands adjacent to Appellants' property. 11. No provision or section of the East Pennsboro Township Subdivision and Land Development Ordinance supports Appellee Township's refusal to approve the final subdivision and land development plan on the basis of obtaining a Court Order opening an off-site and unopened private alley. 12. East Pennsboro Township's authority to regulate any activity on Morris Street has expired as a matter of law. 13. The East Pennsboro Township Commissioners committed an error of law and abuse of discretion by imposing a condition of final subdivision and land development approval upon the Appellants' commencement of an action and obtaining a Court order opening a paper alley known as Morris Street on lands adjacent to Appellants' property. 14. East Pennsboro Township has no authority to compel Appellants to open the paper alley known as Morris Street for public use where such paper alley is not on lands of Appellants and where such paper alley has not been opened or maintained by East Pennsboro Township for a period of twenty-one (21) or more years. 15. Appellants' final subdivision and land development plan is compliant with all provisions, requirements and sections of the East 3 Pennsboro Township Land Development Ordinance. 16. Appellants are incurring substantial economic damages, bank fees, costs, attorney fees and monetary damages as a result of the Board of Supervisors of East Pennsboro Township's improper use of conditions and improper refusal to approve Applicants' final subdivision and land development plan. 17. Since July 5, 2007, Applicants have been advised by township agents that the Board of Commissioners would not consider Appellants' final subdivision and land development plan until Appellants initiated an action and opened the paper street. 18. The Board of Commissioners of East Pennsboro Township and its agents have not issued any written letter or statement indicating the basis for denial of Appellants' final subdivision and land development plan known as "Grants Cove" as required by the Pennsylvania Municipalities Planning Code. 19. Appellants' final subdivision and land development plan known as "Grants Cove" should be approved as a matter of law due to East Pennsboro Township Board of Commissioners' failure to state the reasons for final plan denial and for the failure of the East Pennsboro Township Board of Commissioners to cite any ordinance provision requiring off-site improvements to unopened Morris Street. 20. Appellants are entitled to a de-novo hearing before this Honorable Court upon certification of the entire record of this land use proceeding by the appropriate officials of East Pennsboro Township. 4 WHEREFORE, for the reasons set forth above, Appellants respectfully request that this Honorable Court schedule a de novo hearing upon motion, approve Appellants' final subdivision and land development plan known as "Grants Cove" and direct the Board of Commissioners of East Pennsboro Township to complete all required signatures and dating requirements to require plan recording within ninety (90) days of approval by this Honorable Court. Date: July 31, 2007 Date: July 31, 2007 Respectfully submitt d, Andrew C. Sheely, Es e 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 PA ID-62469 717-697-7050 717-697-7065 ( ax~ Da ton , Esquire 414 Bridge Street Box E New Cumberland, PA 17070 717-774-7435 5 VERIFICATION I verify that the factual statements made in this Notice of Appeal are true and correct. I understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE: July ~/, 2007 CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Notice of Appeal upon the following named individuals this day by first class mail, postage prepaid at Carlisle, Pennsylvania, addressed as follows: Henry H. Coyne,Solicitor COYNE & COYNE P.C. 3901 Market Street Camp Hill, PA 17011 East Pennsboro Township Board of Commissioners 98 South Enola Drive Enola, PA 17025 r~ Date: y , 2007 ~ ~ ~ b 1 ~~ Q T 4x. © ';/D m ~ -r? s:.~- T 7 G ~ ~~''(('' ]] ~ ~ ~ ~/ ~ a ' ~ i ~~ ~~ • ~ ~ ~4J `,~ ~ ^~~~ ~~ ~ Q `~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM H. GOODLING AND KELLY J. GOODLING, HUSBAND AND WIFE Vs. No. 07-4550 CIVIL TERM BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP TOWNSHIP WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) SS. COUNTY OF CUMBERLAND) TO: BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP We, being willing for certain reasons, to have certified a certain action between WILLIAM H. GOODLING AND KELLY J. GOODLING, HUSBAND AND WIFE VS. BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our court of Common Pleas at Carlisle, within (20) days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Commonwealth. WITNESS, The Honorable EDGAR B. BAYLEY, P.J. our said Court, at Carlisle, PA., the 1ST day of AUGUST, 2007. .~ m ~ ~ ~ ~ ~ ~ ' ~ ~ ~ " ' ~ ~ ' ' ~ ' u is R. Long, Prothonotary ..o , ~' `a ~ _r ru .~. ~ ~ Postage $ ~ m o cer<tlled Fee ~ Postmark ~ " (Endorsement Required) Here ~ Restricted DelNery Fee ft'I (Endorsement Required) ~ Total Postage & Fees .? O Sent To O ~` ~freee. Apt: No -°-----------------~----------~~---------------------------------- orPO Box No. Clay, SYete. ZlP+4 --------------------------------------------------------------•----- :r ^ Corttpbte lterns 1, 2, and 3. Also complete hem 4 if Restricted Delivery ~ desin~d. ^ Print yotx name and address on the reverse so that we can r~durt the card to you. ^ Attach this card to the back of the mailpiece, or on the rra,t tt space permits. 1. Article Addressed to: EAST PE[~AtSB01~0 Tt7~1NSHIP BCaiiRD OF CCNMISSIOi~RS 98 SOUI~i ENOLA DRIVE ENOLA, PA 17025 07-4550 CIVIL TERM Agent B. ReceMed by ( ted /Va ) iC. Date of Delivery an M•\ vv~ -a ~~ D. la delNery add s difTererrt m Item 1 ^ Yes H YES, enter delivery address below: ^ No 3. Servke Type xCertffleed Mail ^ Express Mall ^ Registered ^ Retum Receipt for Merohandbe ^ insured MaN ^ C.O.D. 4. 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Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 717-697-7065 (Fax) ~ ~ CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Praecipe to Settle and Discontinue upon the following named individuals this day by first class mail, postage prepaid at Carlisle, Pennsylvania, addressed as follows: Henry H. Coyne,Solicitor East Pennsboro Township COYNE & COYNE P.C. 3901 Market Street Camp Hill, PA 17011 Date: October 3~ , 2007 ~/ ~;~ Andrew C Sheely, Esquire - t ~; ~. 1 r_~ ~ r ~ _ ~ ~~ ~' ~f ... i ' . " , e ~ , ~ ~ ~ : ~ . C --='. L...'~